R v Singh
[2016] NZHC 1666
•21 July 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-019-006253 [2016] NZHC 1666
THE QUEEN
v
MANJIT SINGH
Hearing: 21 July 2016 Appearances:
R Douch for the Crown
RAA Weir for the DefendantSentencing:
21 July 2016
SENTENCING NOTES OF WOOLFORD J
Solicitors/Counsel:
Almao Douch (Crown Solicitor), Hamilton
Public Defence Service, Hamilton
R v SINGH [2016] NZHC 1666 [21 July 2016]
Introduction
[1] Mr Singh, you are here today for sentence on one charge of wounding with intent to cause grievous bodily harm.1 The maximum penalty for this offending is
14 years imprisonment.2 The victim of your offending was your former wife, whose
presence together with your children, I would like to acknowledge here in the Court today.
[2] It is clear, Mr Singh, that you have very serious mental health issues. In 2010 you were acquitted by reason of insanity on charges of causing grievous bodily harm, breaching a protection order and threatening to kill the very same victim. This resulted in you being detained as a special patient pursuant to s 24 of the Criminal
Procedure (Mentally Impaired Persons) Act 2003.3 You have since been placed
under the care of the Auckland Regional Forensic Psychiatric Services. At the time of the present offending you had been granted overnight leave allowing you to spend time between the community and the Mason Clinic as part of efforts for your rehabilitation and re-integration.
[3] Given your mental health issues, a sentence combining imprisonment with committal as a special patient is sought on your behalf. In addition to determining the appropriate term of imprisonment for you today, I am also therefore required to assess whether to make an order for your detention in hospital under s 34 of the CPMIP. I will begin with the conventional sentencing exercise before going on to consider whether such an order is appropriate in your case.
Background
[4] The background to your offending is recorded in an agreed summary of facts. You and the victim married in 1998. You had two children together, a daughter and a son, both of whom are now teenagers. Your marriage broke down and you separated in 2003. You were divorced in 2005. The victim obtained a final protection order
against you in September 2007.
1 Crimes Act 1961, s 188(1).
2 Section 188(1).
3 (“CPMIP”).
[5] On 4 November 2015 you travelled from Auckland to Hamilton to the house where the victim and your children were residing. As I have said, you were on leave from the Mason Clinic at the time. There had previously been some communication between you and the victim via text messages in which she had encouraged you to maintain contact with your children. However, you had given no warning that you would come to the house that day.
[6] When you arrived the victim observed that you were carrying a pistol in the back of your trousers. She queried this and you told her that “gangs were coming for you” and the pistol was for your protection.
[7] You stayed at the house for some hours. Your son and daughter began to feel unwell during the course of the afternoon and went to rest. You remained with the victim in her room and obtained dinner in the evening. During this time you also began to smoke methamphetamine, but stopped at the victim’s request. After dinner you and the victim returned to the bedroom and remained there until approximately
8:00 p.m. At that point the victim needed to take her insulin shot and got up to dress.
[8] While she was getting dressed you assaulted her, forcing her down onto the bed. You got on top of her and held the pistol she had seen earlier to her head. Subsequent investigations revealed that that weapon is likely to have been an air pistol. The victim was not, however, aware of this and was afraid for her life.
[9] Hearing their mother crying out your children entered the bedroom. You then picked up and unsheathed an ornamental sword which was in the corner and used it to slash and stab the victim inflicting a number of wounds. You directed your blows to her upper chest area and head.
[10] Your children screamed at you to stop. When this failed to dissuade you your son left the room to fetch a small axe. He returned and struck you once in the head with the blunt end. You responded by taking the axe from him, but also ceased your assault on his mother. You then left the house taking the sword, axe and air-pistol with you. Police apprehended you in Auckland the following day, but the weapons were not recovered.
[11] As a result of the attack the victim suffered a number of injuries requiring hospitalisation. She had a skull bone fracture with underlying bleeding into the membranes of the brain, scalp and facial lacerations, and a 15 centimetre longitudinal cut above her right eye. She also suffered a right facial bone fracture below her eye socket requiring the insertion of screws and plates. There were more superficial wounds to her breasts, shoulder, arms and hands. Finally, there was a deep laceration to her right elbow which has caused ongoing sensory impairment and muscle weakness in her forearm.
[12] Both she and your children have provided victim impact statements to the Court for today. While it is clear they are a strong and resilient family, it is also apparent that your offending has affected and hurt them deeply.
Personal factors
[13] In addition to the facts of your offending, I am also required to have regard to your personal circumstances. I have had the benefit of reading the pre-sentence report prepared on you by the Department of Corrections as well as a number of expert mental health reports for the purposes of the s 34 application.
[14] You are 48 years old. You immigrated to New Zealand from India in 1996 and have New Zealand citizenship. Prior to your arrest you were employed for a period of time working as a builder.
[15] Your first psychiatric contact was in 2007 while you were on remand for a previous assault against the same victim. You were referred to Auckland Regional Forensic Psychiatric Services and presented with persecutory beliefs that your ex- wife was trying to poison you, that she was being “unfaithful”, and that your children were being prostituted. These beliefs have fluctuated in their intensity over the intervening period, but have not fully resolved. You described having placed video cameras in the victim’s home and believed they showed signs of gang activity because your son had a “strange look in his eyes”. You were diagnosed with delusional disorder and subsequently with paranoid schizophrenia.
[16] You were admitted to the Mason Clinic in December 2008 as a result of these persistent delusional beliefs, and were also treated there after your committal as a special patient in 2010.
[17] As part of your treatment you were placed on a number of anti-psychotic medications, but admit being only erratically compliant in the prison setting. It also appears that you had ceased to take your prescribed medication at the time of the current offending.
[18] The pre-sentence report assesses you as having a medium risk of re-offending and high risk of causing harm to others. You have a number of previous convictions, one of which is for a domestic violence charge of male assault female in 2007. The other convictions primarily relate to unlawful possession of weapons and drugs, with the most serious being for possession of methamphetamine for supply in 2008. You were sentenced in respect of that offending to four years and three months imprisonment.
[19] You expressed remorse for the current offending to the writer of the pre- sentence report, saying that you are very sorry for what you have done and know it not to have been right. While your remorse is assessed as genuine, the report writer expressed concerns about you being able to manage similar behaviour in the future if you again cease to take your medication.
Approach to sentencing
[20] In determining the appropriate term of imprisonment, I adopt a three step approach.4 The first step is to select a starting point based on the features of the offending itself, the second step is to adjust this starting point to take account of your personal factors, and the final step is to consider what discount should be applied to reflect your guilty plea.
[21] As I have said, I will then go on to consider whether under s 34 I should make an order for you to be detained in hospital as a special patient.
4 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135.
[22] Throughout this process I will also consider the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act. In particular, I have regard to the need to denounce your conduct, promote accountability for the harm to the victim and deter others from engaging in similar behaviour. At the same time I must impose the least restrictive outcome appropriate and, particularly given your mental health difficulties, must consider the importance of your rehabilitation.
Starting point
[23] The tariff case for wounding with intent to cause grievous bodily harm is R v Taueki.5 It sets out three bands of appropriate sentencing ranges depending on the number of aggravating factors present. Band 1 offending calls for a starting point between three and six years imprisonment and is appropriate for offending at the lower end of the spectrum. Band 2 starting points range from five to 10 years imprisonment and are appropriate where two or three of the aggravating factors identified by the Court of Appeal in Taueki are present.6 Finally, band 3 starting points range from nine to 14 years imprisonment and are usually appropriate where three or more aggravating features are present and the combination is particularly grave.7
[24] In your case the Crown identifies five aggravating features namely the use of extreme violence; causing serious injury to the victim; use of a weapon; attacking the head and the vulnerability of the victim. It submits that the offending falls into band 3 and that the appropriate starting point would be in the region of 12 to
13 years imprisonment. It relies, in particular, on the comment of the Court of Appeal in Taueki that a pre-meditated domestic assault involving home invasion, use of a weapon and serious injury may warrant a starting point at the upper end of band 3.8
[25] Defence counsel does not take issue with the aggravating features identified by the Crown and accepts that this offending must fall into band 3. He highlights,
however, that there is considerable overlap between factors and submits that the
5 R v Taueki above n 4.
6 At [38].
7 At [40].
8 At [41(b)].
appropriate starting point is in the region of 10 years imprisonment. In contrast to the upper-end of band 3 attack described in Taueki, counsel says that your offending involved neither significant premeditation nor unlawful entry. He relies on the recent Court of Appeal decision in Rowles v R where more extreme violence, resulting in long-term brain injury, attracted a starting point of 10 and a half years
imprisonment.9
[26] I agree that your offending falls into Taueki band 3. This was an extremely violent and sustained attack on the victim causing her serious injuries. As I have already said, these included facial and skull fractures as well as long-term damage to her right arm. But for your children’s courage in intervening, the injuries may have been even worse. The use of two weapons (the air pistol and ceremonial sword) are also aggravating factors. So too is the fact that you focused your blows on the victim’s head.
[27] However, as counsel on your behalf has highlighted, I am mindful of the overlap between these aggravating factors. I also consider that while the victim was in a vulnerable position this feature was present to a comparatively lesser degree. I accept that the level of violence and the long-term physical injuries inflicted in this case, although very significant, are not as serious as in Rowles v R. Finally, I have had regard to a number of similar cases involving grievous bodily harm offending
against domestic partners.10
[28] Weighing all these factors I propose to adopt a starting point of 10 years imprisonment.
Adjusting for personal factors
[29] I turn then to consider what adjustments should be made to reflect your personal factors.
9 Rowles v R [2016] NZCA 208.
10 R v Fotuaika HC Wellington CRI-2008-083-73, 22 October 2008; R v Nelson HC Rotorua CRI-
2004-077-1577, 16 August 2005; R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.
[30] Although you have previous convictions the Crown does not seek any uplift in that respect. I agree that no uplift is necessary given that only one of your previous convictions is related to domestic violence and in light of your ongoing mental health issues.
[31] You have demonstrated remorse, expressed in the pre-sentence report and in the letter of apology you have provided to the Court for sentencing today. You have also undertaken, through friends, to provide reparation to the victim in the sum of
$2000, which I am advised will be paid to the Registrar today. In my view these factors together justify a discount of eight per cent.11
[32] The other issue for me to consider in terms of personal mitigating factors is whether your sentence should be further reduced to reflect your mental disorder. Mental illness may mitigate a sentence for several reasons.12 If it is causative of offending it moderates culpability. It may also make a sentence of imprisonment more subjectively harsh, or it may be a combination of those factors.13 In your case the expert reports suggest that there was a real link between your mental illness and your offending.14
[33] Submissions from counsel have raised, however, the question whether the Court of Appeal decision in R v Goodlet suggests that discounts for mental illness are not appropriate if the Court orders detention as a special patient under s 34.15
This position may have some merit where the basis for providing a discount is that the offender’s mental illness would make prison more difficult, as in such cases the offender could be expected not to be in prison until their mental health had improved. I do not, however, see any basis for declining to allow a discount for an offender’s mental illness in a case such as this where the illness is related to the offending so as to reduce culpability. Nor, in my reading, does the decision in
Goodlet address this issue.
11 Referring to the discount allowed in Rowles v R, above n 9.
12 E (CA689/10) v R (2011) 25 CRNZ 411 (CA) at [68]-[70].
13 At [68].
14 Report of Dr DG Chaplow dated 8 April 2016.
15 R v Goodlet [2011] NZCA 357, [2011] 3 NZLR 783.
[34] The Crown and defence counsel are agreed that if a discount for mental disorder is to be allowed it should be in the region of five per cent. This is a lesser discount than might usually be expected for a mental disorder such as yours, but I accept the submission for the Crown that your voluntary use of methamphetamine around the time of the offending is a limiting factor in this respect. I am satisfied that a discount of five per cent is appropriate.
[35] This means, Mr Singh, that after taking your personal circumstances into account your sentence is reduced to eight years and eight months imprisonment.
Guilty plea
[36] The last step in determining the appropriate term of imprisonment for you is to apply a discount for your guilty plea. Your plea was entered on 22 April 2016. This was not a prompt plea, but I accept that there were real issues to resolve regarding the impact of your mental illness and the charge that you would ultimately face. The case against you was strong, but your decision to acknowledge your guilt has nevertheless spared your family from giving evidence and has spared the State the expense of a trial. I am prepared, in those circumstances, to allow a discount of
20 per cent.
[37] The term of imprisonment imposed on you Mr Singh will therefore be seven years imprisonment.
[38] In addition, the Crown seeks a minimum period of imprisonment of 50 per cent.16 Counsel on your behalf responsibly accepts that given the seriousness of your offending, your history and the danger you pose to the victim, this cannot realistically be opposed.
Detention as a special patient under s 34
[39] That leaves the issue of whether you should be detained in hospital as a special patient under section 34 of the CPMIP. Section 34 gives the Court the power
to order treatment of an offender under the mental health legislation either in
16 Relying on R v Taueki, above n 4, at [57]; Sentencing Act 2002, s 86.
addition to (s 34(a)) or instead of (s 34(b)) imposing a term of imprisonment. There is no dispute that this is a case where the offending was serious, as described by the Court of Appeal in Goodlet, and that any order under s 34 must be in addition to a term of imprisonment.17
[40] The relevant provision is therefore s 34(1)(a)(i). Under that section I may order your detention in hospital as a special patient if satisfied on the evidence of one or more health assessors:18
(a) that you are mentally disordered; and
(b)that your mental impairment requires compulsory treatment or compulsory care either in your own interests, or for the safety of the public or for the safety of a person or class of persons.
[41] Counsel on your behalf submits that these criteria are met.
[42] Two reports have been provided by a consultant psychiatrist, Dr van Zeist- Jongman, for the purpose of the s 34 assessment. The Court has also received a number of other reports in the course of the proceeding, including a report from consultant psychiatrist, Dr Peter Dean, dated 30 November 2015.
[43] In terms of the first criteria, Dr Dean’s report confirmed his opinion that you were mentally disordered as defined by s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. The report records “an abnormal state of mind characterised by delusions, disorder of perception and disorder of mood”. It also noted that you were currently receiving care as a special patient subject to the previous disposition under s 24 of the CPMIP. The reports from Dr van Zeist- Jongman are consistent with this in confirming your diagnosis of schizophrenia. There can be little doubt on this evidence that you satisfy the first criteria.
[44] In terms of the second criteria, Dr van Zeist-Jongman’s report dated 27 June
2016 records her opinion that you require a further period of inpatient care. She
17 R v Goodlet, above n 15, at [41]-[44].
18 At least one of whom must be a psychiatrist.
reports that you had been compliant with your medication regime as a result of which your mental state has remained stable. She expresses concern, however, at your ongoing belief that you did not suffer from schizophrenia and did not require the medication. She hopes to change your medication regime to a depot injectable form to address this issue, although noting this may cause temporary deterioration.
[45] In her second report dated 14 July 2016, Dr van Zeist-Jongman confirms her opinion that you would need to remain a special patient for an extensive period of time. She also recorded that your needs at present cannot be provided for in a prison environment.
[46] I am satisfied on the basis of this and the other psychiatric evidence provided to the Court that your mental impairment does require compulsory treatment and care in your own interests and in the interests of your family and that an order under s 34(1)(a)(i) should be made. It is evident that you are suffering from severe mental illness and that this needs to be addressed. I am also confident that in the long-term your rehabilitation will also be necessary to ensure the safety of your victim.
Sentence
[47] Mr Singh please stand.
[48] On the charge of wounding with intent to cause grievous bodily harm you are sentenced to seven years imprisonment, with a minimum period of imprisonment of three and a half years.
[49] I also make an order under s 34(1)(a)(i) of the CPMIP that you be detained in hospital as a special patient. Time spent detained as a special patient will count towards your prison sentence.19 If you are assessed as no longer requiring treatment during the term of your sentence, you will be required to serve the remainder in
prison.20
19 R v Goodlet, above n 15, at [22].
20 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 47, 48.
[50] The Crown is offering no evidence on charge One and it is accordingly dismissed.
[51] You may stand down.
……………………………….
Woolford J
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